Spencer, J., delivered the opinion of the Court. The defendant,
on his arraignment, pleaded, that he had before
been indicted, tried, and convicted, for the same felony;
that, upon his motion, the judgment had been arrested,
and that he had been discharged from that judgment. It is
admitted, that the former and present indictment are, in
every respect, similar. To this plea the district attorney demurred;
the plea was overruled, and the defendant was
thereupon tried and convicted, and sentenced to imprisonment
in the state prison.

It was decided in the case of The People v. Barret &
Ward, (1 Johns. Rep. 66.) that a person, after an acquittal,
might be indicted and tried the second time, if the first
indictment was erroneous, so that no good judgment could
be given upon it; and where a Court of competent jurisdiction
arrest a judgment at the instance of the defendant,
it must be intended, legally, that the indictment was vicious,
for the judgment cannot be reviewed on a writ of
error; as an arrest of judgment is a mere refusal, on the
part of the Court, to give judgment, every Court is bound
to pay that respect to a Court of co-ordinate jurisdiction,
as to presume its judgment to be according to law, when it
is presented for consideration collaterally.

The effect of arresting a judgment is the same as quashing
an indictment; the latter happens before trial, the former
after; and, in this case, it appears to me, that as no
writ of error could be brought upon the decision of the
Court of Sessions arresting the judgment, that proceeding
is not a bar to any other for the same matter. In analogy
to civil cases, the arrest of judgment cannot be pleaded in
bar to another prosecution for the same matter, because
there is no judgment of the Court susceptible of review.

It is stated here, that the two indictments are, in every
respect, similar; but this is not so pleaded, and, if it had
been, the consequence would be the same; as already observed,
in this collateral way, we must presume, from the
judgment being arrested, that the indictment was erroneous,
and if erroneous, then a conviction would not bar
another good indictment. It is in vain to say, either that
the former indictment was good, or that this, being like it,
must be holden to be bad also, because the other was adjudged
to be bad. We must take it as a settled point, that
the other indictment was bad, however the fact may be;
and we are not to be told, that this is a bad indictment,
merely on the authority of the sessions. We must see if it
be bad, and this is not even pretended.

For these reasons, I think the plea of auterfois acquit was
properly overruled, and such is the opinion of the Court.